Mashonaland Turf Club v Susan Peters and Gibson Investments (Private) Limited

The plaintiff, a voluntary membership association, issued summons against the defendants on 9 October 2013 seeking eviction from Borrowdale Race Course, arrears for rent and related charges totaling US$155,726.33, holding over damages, and costs. Defendants filed a plea on 31 March 2014. On 10 October 2016, plaintiff filed a notice of amendment deleting the eviction claim and modifying other claims, which was not opposed by defendants and deemed amended by consent. The plaintiff had filed a separate court application (HC 10875/16) for eviction under statutory provisions, which was dismissed by Justice Matanda-Moyo on 10 October 2017 on the basis that the present action was still pending. Following that dismissal, plaintiff sought to reinstate its original claims by filing a "notice of withdrawal of notice of amendment" on 1 October 2019 and a "notice of amendment to plaintiff's summons and declaration" on 9 October 2019. Defendants opposed these notices through their legal practitioners, pointing out procedural irregularities and advising that proper application procedure should be followed.

• Whether the notices filed by the plaintiff on 1 October 2019 and 9 October 2019 constituted valid applications for amendment of pleadings
• Whether the procedure adopted by plaintiff complied with the peremptory requirements of the High Court Rules, 1971
• Whether the irregularities in the plaintiff's notices were fatal and warranted striking off
• Whether costs should follow the cause given plaintiff's non-compliance with court rules

1. The Notice of withdrawal of Notice of amendment filed on 1st October 2019 is struck off the roll. 2. The Notice of Amendment to plaintiff's summons and declaration filed on 9 October 2019 is struck off the roll. 3. Plaintiff to pay the costs.

Amendments to pleadings after issue of summons can only be procured by two methods: (1) consent of the parties, or (2) order of court or judge. Where amendments are opposed, they must be prosecuted by way of formal application in accordance with the High Court Rules. Applications for amendment must comply with peremptory requirements: they must be in prescribed Form 29 (court application) or Form 29B (chamber application), must be supported by affidavit, and must be accompanied by a draft order. Non-compliance with these mandatory requirements renders the application irregular. While irregular pleadings may be condoned depending on circumstances, where a party has been alerted to irregularities, advised of correct procedure, had ample time to regularize its position, yet failed to do so and did not apply for condonation, the irregular pleadings will be struck off. A party cannot file parallel processes seeking substantially the same relief. In civil matters, which are litigant-driven, courts must be slow to authorize or condone departures from rules where no request for condonation has been made.

The court observed that each case regarding condonation of irregular pleadings must be considered on its own facts. The court noted that rules are made for the court and not vice versa, and courts must tread with care to avoid placing form over substance, but emphasized there must be limits to the use of rule 4C (which allows court to condone non-compliance), particularly where condonation has not been applied for. The court commented that plaintiff's failure to recognize the need to apply for condonation showed a cavalier approach to compliance with court rules. The court also noted that it has always been recognized in the jurisprudence that irregular pleadings may be condoned depending on the circumstances, referencing Agricultural Bank of Zimbabwe Ltd T/A Agribank v Nickstate Investments (Pvt) Ltd & Ors HH 23-10.

This case establishes important principles regarding strict compliance with procedural rules for amendments to pleadings in Zimbabwean civil procedure. It emphasizes that parties cannot circumvent mandatory procedural requirements even when seeking to restore previously amended claims. The judgment reinforces that while courts have discretion to condone irregularities, such discretion must be invoked through proper application for condonation, and litigants cannot assume courts will overlook procedural defects, particularly when the opposing party has timeously objected. The case also illustrates the principle that civil litigation is litigant-driven and courts will not readily assist parties who fail to comply with rules despite being legally represented and advised of correct procedure. It serves as a warning against cavalier approaches to court rules and parallel/duplicate proceedings.